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If a statute states a mitigating or negating circumstance to a criminal charge, who has the burden of proof, the prosecution or the defense?

For example, if a state statute says that it is criminal for a person to threaten another, but in the same statute it says that such a threat will not constitute a crime if the threatened person was trespassing on the defendant's property, then who bears the burden of proof that the threatened person was trespassing (or not trespassing).

In other words, if the law has an exception to a criminal charge, who must prove that the exception does or does not apply? What is the precedent?

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  • The example you gave isn't of a mitigating circumstance but of one that eliminates the possibility of a conviction for the act. A mitigating circumstance would either result in a lesser sentence or a conviction on a lesser charge.
    – Ross Ridge
    Commented Mar 4, 2020 at 17:04
  • @RossRidge My question reads "mitigating or negating"
    – Cicero
    Commented Mar 4, 2020 at 18:26
  • Well, which is it then?
    – Ross Ridge
    Commented Mar 4, 2020 at 18:36
  • The statute almost certainly defines it, even if it isn't someplace obvious.
    – ohwilleke
    Commented Mar 5, 2020 at 23:11

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The defense

These are affirmative defenses and the burden of proving they exist lies on the defendant. Note that they have a balance of probabilities burden, not a beyond reasonable doubt.

It doesn’t matter if proving this is a total or partial defense.

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